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Eminent Domain FAQs

Condemnation cases involve special procedural and substantive rules that are unfamiliar to most lawyers, much less the landowners whose property is about to be taken. The purpose of this webpage is to answer several frequently asked questions about eminent domain. It is not to provide legal advice. You should always consult with an experienced eminent-domain attorney when facing a taking. If you have questions about any of the issues raised below, we invite you to discuss them with us.

What do the terms “eminent domain” and “condemnation power” mean?

“Eminent domain” and “condemnation power” are often used interchangeably. Eminent domain is the inherent power of the state and federal governments—and certain private companies acting under their authority—to take private property for public purposes. “Condemnation of property” has a couple of meanings. Condemnation is the formal act by which the authority with eminent-domain power uses that power to transfer title from the private property owner to the condemning authority. This act should not be confused with the exercise of police power to “condemn” property for failure to maintain it.

What are the constitutional bases of eminent-domain power?

The text of the U.S. Constitution does not explicitly grant eminent-domain power to the federal government, but the U.S. Supreme Court has explained that “[t]he power of eminent domain is essential to a sovereign government.” United States v. Carmack, 329 U.S. 230, 236 (1946). The Fifth Amendment places important limitations on the use of that power when it states, “nor shall private property be taken for public use, without just compensation.” The Fifth Amendment protects property owners by forcing the government to pay “just compensation” for the property taken and by permitting the government to condemn private property only when it does so for a “public use.” Likewise, Article I, Section 17 of the Texas Constitution guarantees property owners “adequate compensation” when their property is “taken, damaged, or destroyed” for public use.

The traditional answer is that individual landowners could refuse to sell their property, or consent to selling it only at unreasonably high prices, making it difficult or impossible for the condemning authority to build certain infrastructure or other public projects that would benefit the public at large.

What are the most common types of condemnation projects?

The most common projects are the construction or expansion of infrastructure such as roads, highways, bridges, municipal infrastructure, electric-transmission lines, water pipelines, oil or gas pipelines, rail lines, dams, water reservoirs, and public buildings.

What are some questions to ask before hiring a law firm for a condemnation case?

“How many jury verdicts and appeals have you won for your clients in the past five years?”

“If I hire you as my lawyer, will you actually work on my case?”

“Can I reach you, or will I simply get referred to an assistant?”

“Do you represent condemning authorities in which you take contrary positions to those of landowners?”

How does the condemnation process begin in Texas state court?

Typically, the entity with condemnation power (the “condemnor”) plans for a public project and decides whether it needs private land to complete the project. Details about the project, including its exact location, may take months or years to finalize. Sometimes landowners can offer input on the project’s final location by participating in public hearings. Once the exact location of the project is fixed, the condemnor must make a formal declaration that, due to public necessity, certain property rights must be acquired from property owners in order to complete the project.

The condemnor must notify all property owners whose land will be taken for the project. The condemnor will often order a property appraisal, in which an appraiser attempts to calculate the market value of the entire property and the specific property rights sought to be acquired by the condemnor. A land-acquisition agent for the condemnor will use the amount in the appraisal report to make an offer to buy the property needed for the project. This offer usually satisfies the legal requirement that the condemnor negotiate with the landowner “in good faith.” The “offer” may have a time limit that requires the landowner to respond by a particular date. The landowner is free to accept or reject the offer. The condemnor’s initial offer letters are often confusing and intimidating to property owners who do not understand the eminent-domain process.

What if the land owner does not want to accept the condemnor’s initial offer?

If the landowner rejects the offer, the condemnor will sue the landowner to acquire the property rights it seeks. The document the condemnor uses to initiate the lawsuit is called an “Original Petition.” Texas law requires the Original Petition to be filed in the county where the property is located. Rather than immediately launch into full-scale litigation, the next step in the Texas condemnation process is for the parties to conduct a special commissioners’ hearing, which is usually presided over by three court-appointed commissioners. The special commissioners must be disinterested property owners who reside in the county where the condemnation takes place. The commissioners often have no legal background or training, yet Texas law gives them power to make an initial determination of the value of the condemned property. Texas law requires that each party be given written notice of the hearing date (no later than the eleventh day before the day set for the hearing). In this informal administrative proceeding, both the condemnor and the landowner can put on evidence supporting their positions about market value. The landowner is not required to attend the hearing; he or she should talk with legal counsel before deciding whether to attend and participate in it.

At the hearing’s conclusion, the special commissioners issue a “special commissioners’ award,” which sets out the commissioners’ independent opinion about the value of the property rights taken. To claim possession of the property, the condemnor must first deposit the amount of the special commissioners’ award in the court’s registry. The landowner has the option to withdraw the award, but should consult an attorney beforehand because there are significant legal consequences for withdrawing the award. If the condemnor complies with certain legal requirements, it may take possession of the property after the special commissioners’ hearing and begin construction of the project.

But this is not necessarily the end of the condemnation process. If either side is unhappy with the award, the landowner and the condemnor may object to the special commissioners’ award on or before the first Monday following the 20th day after the day the commissioners file their findings with the court. In doing so, the condemnation lawsuit will be “appealed” to the trial court. The case then moves forward in a manner similar to other lawsuits. The trial is “de novo,” which means that both parties start from square one and that the case proceeds almost as if the commissioners’ hearing and award had never happened. In Texas state court, the landowner has the absolute right to a jury trial.

Can a landowner prevent the condemnor from taking his or her property?

Sometimes. The landowner may convince the court system that the condemnor lacks condemnation power, that the taking is not for a “public use,” or that the condemnor failed to comply with statutory and other legal requirements in attempting to take the property. It is important to consult with an attorney about the potential methods for preventing the condemnor’s action. But the main issue in most condemnation cases is whether the condemnor has provided “adequate compensation” for the taking, not whether the condemnor had the right to take the property.

What is “just compensation” or “adequate compensation”?

Most disputed condemnation cases boil down to one main issue—money. The U.S. Constitution protects a property owner’s right to “just compensation” for condemned property; the Texas Constitution ensures “adequate compensation.” “Adequate compensation” is generally considered to be market value, which is the price a willing buyer would pay to a willing seller under normal market conditions. Compensation is also determined by the type of “taking” that occurs. For example, if an entire property is condemned, the landowner is entitled to receive the fair market value for the entire property. But if only a portion of the property is condemned, the landowner may be compensated for the portion of the property actually taken as well as for any damage to the landowner’s remaining property.

Do condemnors ever offer less than the fair market value of the property taken?

Yes. Determining the correct amount of just compensation is often hotly contested by the parties and can be a slippery task—as evidenced by the wealth of Texas cases on the topic. It is often essential to have an experienced attorney and appraiser on your side to ensure “just” and “fair” compensation.

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Luke Ellis and Justin Hodge are partners with Marrs Ellis & Hodge LLP. Justin heads the firm's eminent domain practice in the Houston office. Luke heads the firm's eminent domain practice in the Austin office. Luke Ellis is widely recognized as one of Texas’s top young lawyers—and one of the top lawyers of any age practicing in the area of eminent domain. Mr. Ellis has broad experience and has enjoyed success in many types of civil litigation. Justin Hodge is a trial lawyer who represents Texas landowners in condemnation, eminent-domain, and real-estate lawsuits. He represents landowners in condemnation proceedings, not the governmental authorities or private companies taking property. Mr. Hodge has handled complex condemnation and eminent-domain cases throughout the State of Texas.
If you have questions about any of the issues raised in this blog, we invite you to discuss them with us at jhodge@mehlaw.com or lellis@mehlaw.com.